United Nations
General Assembly
A/HRC/15/22/Add.3
Distr.: General
2 September 2010
Original: English
Human Rights Council
Fifteenth session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the adverse effects of
the movement and dumping of toxic and dangerous products
and wastes on the enjoyment of human rights, Okechukwu
Ibeanu*
Addendum
Mission to India**
Summary
At the invitation of the Government, the Special Rapporteur on the adverse effects
of the movement and dumping of toxic and dangerous products and wastes on the
enjoyment of human rights conducted a country visit to India from 11 to 21 January 2010.
The purpose of the mission was to examine the adverse effects that hazardous activities,
such as shipbreaking and the recycling of electrical and electronic waste (e-waste), have on
the enjoyment of human rights of countless individuals working in these sectors or living
close to the places where these activities take place. During the mission, the Special
Rapporteur met with a wide range of Government representatives and non-State actors, and
visited an e-waste recycling facility in Roorkee, informal small-scale laboratories for the
dismantling and recycling of electronic products at Shastri Park in the suburb of the capital,
a facility for the treatment, storage and disposal of hazardous wastes in Ankleshwar, and a
number of shipbreaking yards in Alang and Mumbai.
The Special Rapporteur welcomes the significant progress the country has made in
the area of the management and disposal of hazardous products and wastes. India has
developed a comprehensive legal framework to protect human rights and ensure the
*
**
GE.10-15813
Late submission.
The summary is being circulated in all official languages. The report itself, contained in the
annex to the summary, is being circulated in the language of submission only.
A/HRC/15/22/Add.3
environmentally sound management of hazardous products and wastes throughout their life
cycle. With specific regard to shipbreaking, the Special Rapporteur notes with satisfaction
the improvement of the health and safety conditions in Alang/Sosiya, as well as the efforts
made by the regulatory authority and the industry to improve the health and quality of life
of workers and their families. With regard to e-waste, the Special Rapporteur welcomes the
various initiatives undertaken by Indian authorities to address the e-waste problem in India,
and in particular the elaboration of the draft rules on the environmentally sound
management and disposal of e-waste.
Despite the progress made, the Special Rapporteur identifies a number of key
challenges. National legislation on waste management and health and safety at work is not
effectively implemented, and the current institutional framework appears inadequate to
respond to the health and environmental challenges posed by the generation, management,
handling, transport and disposal of toxic and dangerous products and wastes. The health
and safety situation prevailing at the shipbreaking yards continues to remain critical,
especially in Mumbai, where the working conditions and the quality of facilities remain
highly inadequate for guaranteeing health and safety at work and an adequate standard of
living for those employed in the shipbreaking sector. The Special Rapporteur notes that at
present, the existing legal framework is not sufficient to ensure the environmentally sound
management and disposal of e-waste and expresses his concerns about the extremely
dangerous recovery processes and techniques used in the informal e-waste recycling sector,
as well as about the widespread contamination caused by the unsound disposal of e-waste
into the environment.
The Special Rapporteur concludes with a series of recommendations aimed to assist
the Government in its efforts to promote the effective enjoyment of human rights by those
individuals and communities who may be adversely affected by the unsound management
and disposal of hazardous products and wastes.
2
A/HRC/15/22/Add.3
Annex
Report of the Special Rapporteur on the adverse effects of
the movement and dumping of toxic and dangerous products
and wastes on the enjoyment of human rights on his mission
to India (11 to 21 January 2010)
Contents
Paragraphs
Page
I.
Introduction.............................................................................................................
1–4
4
II.
Legal and institutional framework ..........................................................................
5–28
4
III.
IV.
A.
International obligations .................................................................................
5–9
4
B.
Constitutional and legislative framework .......................................................
10–23
5
C.
Institutional framework...................................................................................
24–28
7
Issues in focus ........................................................................................................
29–83
9
A.
Shipbreaking...................................................................................................
29–63
9
B.
E-waste ...........................................................................................................
64–83
15
Conclusions and recommendations .........................................................................
84–103
18
A.
International obligations .................................................................................
84–85
18
B.
Constitutional and legal framework................................................................
86–88
19
C.
Institutional framework...................................................................................
89–92
19
D.
Shipbreaking...................................................................................................
93–100
20
E.
E-waste ...........................................................................................................
101–104
21
3
A/HRC/15/22/Add.3
I.
Introduction
1.
The Special Rapporteur on the adverse effects of the movement and dumping of
toxic and dangerous products and wastes on the enjoyment of human rights conducted a
country visit to India from 11 to 21 January 2010. He would like to express his gratitude to
the Government of India for the invitation, as well as for the support provided to him
throughout the visit. The Special Rapporteur also wishes to thank representatives of the
United Nations Development Programme (UNDP) in India for their valuable cooperation
and assistance in arranging the agenda for the mission.
2.
The purpose of the visit was to examine the progress made, and the difficulties
encountered, by the country in implementing its obligations under human rights and
environmental law to ensure the sound management and disposal of hazardous products
and wastes. In particular, the aim of the mission was to gather first-hand information on the
adverse effects that hazardous activities, such as shipbreaking and the recycling of
electrical and electronic waste (e-waste), have on the enjoyment of human rights of the
countless individuals working in these sectors or living close to the places where these
activities take place.
3.
During his visit, the Special Rapporteur met with senior representatives of the
following: the Ministry of External Affairs; the Ministry of Environment and Forests; the
Ministry of Labour and Employment; the Ministry of Steel; the Ministry of Shipping; the
Ministry of Agriculture; the Central Pollution Control Board; and the State Pollution
Control Boards in Gujarat and Maharashtra. The Special Rapporteur also met
representatives of several United Nations specialized agencies, programmes and bodies,
representatives of the donor community, academics, and members of civil society
organizations, trade unions and the private sector.
4.
The Special Rapporteur had the opportunity to visit an e-waste recycling facility in
Roorkee, Uttarakhand, and a number of informal small-scale laboratories for the
dismantling and recycling of electrical and electronic products at Shastri Park, in the
suburbs of Delhi. He also visited a facility for the treatment, storage and disposal of
hazardous wastes in Ankleshwar, Gujarat, and a number of shipbreaking yards in
Alang/Sosiya, Gujarat, and Mumbai, Maharashtra.
II.
Legal and institutional framework
A.
International obligations
5.
India is a party to a number of international human rights treaties, including the
International Covenant on Economic, Social and Cultural Rights and the International
Covenant on Civil and Political Rights. Pursuant to these treaties, the country has
undertaken an obligation to protect individuals and communities within its jurisdiction by
eliminating, or reducing to a minimum, the risks that hazardous products and wastes may
pose to the enjoyment of human rights, including the right to life, the right to the enjoyment
of the highest attainable standard of physical and mental health, the right to safe and
healthy working conditions, the right to food and safe drinking water, the right to adequate
housing, the right to information and public participation and other human rights enshrined
in the Covenants and the Universal Declaration of Human Rights.
6.
India has ratified some multilateral environmental agreements regulating the
sound management and disposal of toxic and dangerous products and wastes, including the
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and
4
A/HRC/15/22/Add.3
their Disposal, the Rotterdam Convention on the Prior Informed Consent Procedure for
Certain Hazardous Chemicals and Pesticides in International Trade and the Stockholm
Convention on Persistent Organic Pollutants.
7.
India is a party to the International Convention for the Prevention of Pollution
from Ships (1973), as modified by the Protocol of 1978 relating thereto (MARPOL 73/78),
but has not ratified other conventions negotiated under the auspices of the International
Maritime Organization to regulate pollution from ships, such as the Convention on the
Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) (the
“London Convention”) and its 1996 Protocol.
8.
Similarly, India is not a party to several conventions developed under the guidance
of the International Labour Organization to protect workers from health and safety hazards
associated with dangerous working activities, including the Convention concerning
Prevention and Control of Occupational Hazards caused by Carcinogenic Substances and
Agents, 1974 (No. 139), the Convention concerning the Protection of Workers against
Occupational Hazards in the Working Environment Due to Air Pollution, Noise and
Vibration, 1977 (No. 148), the Convention concerning Occupational Safety and Health and
the Working Environment, 1981 (No. 155), the Convention concerning Safety in the Use of
Asbestos, 1986 (No. 162) and the Convention concerning Safety in the Use of Chemicals at
Work, 1990 (No. 170).
9.
As in other common-law jurisdictions, international treaties are not self-executing
in India. Since the two Covenants have not been incorporated into Indian law, they do not
have force of law in India, and cannot be enforced in Indian courts. Some, but not all, the
human rights enshrined in the two Covenants have been incorporated in the Constitution or
implemented through existing domestic legislation, amendments to existing legislation or
new legislation, as appropriate. Furthermore, treaties that have not been incorporated can
still have an indirect impact on the interpretation and application of domestic legislation,
since statutes should be interpreted in a manner consistent with international law.
B.
Constitutional and legislative framework
10.
Part III of the Constitution of India incorporates “fundamental rights”, which are
justiciable under articles 32 and 226 of the Constitution. They include, among others,
equality before the law, prohibition of discrimination, and protection of personal liberty and
life. Part IV of the Constitution, which lays down the “directive principles of State policy”,
includes some economic and social rights that could not be guaranteed at the time the
Constitution was enacted, but were expected to be fulfilled in succeeding years, such as the
right to work, the right to just and favourable conditions of work, the right to an adequate
standard of living and the right to health. Although they cannot be enforced in national
courts, the directive principles are increasingly being used by judges as tools to guide
interpretation of fundamental rights, including the right to life protected by article 21 of the
Constitution.
11.
Environmental protection has been given a constitutional status in India. The
Constitution, as originally enacted, did not contain any specific provision to deal with
environmental pollution, though article 47 made indirect reference to improvement of
public health as one of the primary duties of the State. The Constitution (Forty-second
Amendment) Act, 1976, however, incorporated a new article 48-A in the Constitution,
according to which the State “shall endeavour to protect and improve the environment and
to safeguard the forests and wildlife of the country”. The Amendment also inserted a new
provision in the article 51-A, providing that “it shall be duty of every citizen of India to…
protect and improve the natural environment...”.
5
A/HRC/15/22/Add.3
12.
The Supreme Court has contributed significantly to broaden the content of some of
the basic rights set out in part III of the Constitution. It has stated that “(the) right to life
guaranteed in any civilised society implies the right to food, water, decent environment,
education, medical care and shelter”.1 It has also affirmed that a right to a healthy
environment can be derived from a combined reading of articles 48-A and 51-A of the
Constitution. According to the Supreme Court, environmental pollution which spoils the
atmosphere and thereby affects the life and health of the person has to be regarded as
amounting to a violation of article 21 of the Constitution, since a safe and healthy
environment represents a necessary precondition for the effective enjoyment of the right to
life.2
13.
The Protection of Human Rights Act, 1993, provides for the establishment of the
National Human Rights Commission, as well as State Human Rights Commissions, as
autonomous statutory bodies for the promotion and protection of human rights. It also
provides for the creation of Human Rights Courts at the state level for the purpose of
providing speedy trial of offences arising out of violations of human rights. It defines
human rights as “the rights relating to life, liberty, equality and dignity of the individual
guaranteed by the Constitution or embodied in the International Covenants and enforceable
by courts in India”.
14.
India has developed a number of legislative and regulatory acts for the protection
of the environment and natural resources.
15.
The Water (Prevention and Control of Pollution) Act, 1974, provides for the
prevention and control of water pollution and the maintenance or restoration of
wholesomeness of water. As such, all human activities that may adversely affect water
quality are covered by the Act. Pollution is defined in a comprehensive way, and includes
any contamination or alteration of the physical, chemical or biological properties of water
which may, or is likely to, create a nuisance or render such water harmful or injurious to
public health and the environment. The Act establishes central and state pollution control
boards to perform the functions as laid down under the Act.
16.
The purpose of the Air (Prevention and Control of Pollution) Act, 1981, is to
prevent, control and abate air pollution. Under the Act, which covers any human activities
susceptible to emit air pollutants into the atmosphere, air pollution is defined as the
presence in the atmosphere of any solid, liquid or gaseous substance in such concentration
as may be or tend to be injurious to human beings or the environment. The existing
pollution control boards created under the Water Act were given additional duties to
prevent air pollution.
17.
The Environment (Protection) Act, 1986, passed in the wake of the Bhopal
tragedy, constitutes an “umbrella” legislation to provide a framework for coordination
between the central Government and the various central and state authorities established
under the Water Act and the Air Act. Pursuant to the Environment Act, a number of
notifications, rules and regulations dealing with the sound management and disposal of
hazardous products and wastes have been adopted.
18.
The objective of the Hazardous Wastes (Management, Handling and
Transboundary Movement) Rules, 2008, is to control the generation, collection, treatment,
transportation, storage and handling of hazardous wastes. Hazardous waste is defined as
“any waste which by reason of its physical, chemical, reactive, toxic, flammable, explosive
or corrosive characteristics causes danger or is likely to cause danger to health or
1
2
6
Chameli Singh & Others v. State of Uttar Pradesh, 1996.
Maneka Gandhi v. Union of India, 1978.
A/HRC/15/22/Add.3
environment”. Certain types of hazardous wastes, such as radioactive wastes, biomedical
wastes and municipal solid wastes, fall outside the scope of these Rules.
19.
The person who has control over the affairs of the factory or the premises is
responsible for the safe and environmentally sound handling of hazardous wastes generated
in his or her establishment, and must obtain an authorization from the State Pollution
Control Board. The Rules establish detailed procedures for recycling, reprocessing and
reuse of hazardous wastes and for their import and export. The import of hazardous wastes
to India for disposal is not permitted under the Rules, as import can be authorized only for
the recycling, recovery or reuse of such wastes. The export of hazardous wastes from India
is subject to the prior informed consent of the importing country.
20.
The Manufacture, Storage and Import of Hazardous Chemical Rules, 1989, apply
to any industrial activity relating to the handling or storage of hazardous chemicals.
Industries have to identify the major accident hazards, and are required to take adequate
steps to prevent such major accidents and/or limit their consequences to persons and the
environment. They are also required to provide workers with information, training and
protective equipment necessary to ensure their safety. On-site and off-site emergency plans
detailing how major accidents will be dealt with are to be prepared before initiating any
activity. In the event a major accident occurs, industries have a duty to inform relevant
authorities and provide adequate information to persons living close to the plant on the
nature of the accident and the safety measures to be adopted.
21.
The Bio-medical Waste (Management and Handling) Rules, 1998, regulate the
collection, management, storage, treatment and disposal of biomedical waste, such as
human and animal anatomical wastes, items contaminated with blood or body fluids,
medicines and chemical wastes. It is the responsibility of the generators of biomedical
waste (health-care institutions, hospitals and clinics providing treatment to more than 1,000
patients per month) to segregate, pack, store, transport, treat and dispose of the biomedical
waste in an environmentally sound manner. Biomedical waste is to be segregated into
containers/bags at the point of generation, and treated and disposed of in appropriate
biomedical waste treatment facilities.
22.
The Municipal Solid Wastes (Management and Handling) Rules, 2000, apply to
any municipal authority responsible for collection, segregation, storage, transportation,
processing and disposal of municipal solid wastes. Municipal authorities must set up
adequate waste processing and disposal facilities. Municipal solid wastes are to be disposed
of through landfills, and in accordance with specifications and standards laid down in the
Rules with regard to the protection of ground water, ambient air, leachate quality and
compost quality.
23.
The Right to Information Act, 2005, provides that all citizens have the right of
access to information under the control of public authorities. Public authorities are required
to reply as expeditiously as possible, and in any case within 30 days of the receipt of the
request. A request for information may be refused only in the circumstances set out in
section 8, for example, if the disclosure would prejudicially affect the sovereignty and
integrity of the State or endanger the life or physical safety of any person. The Act also
requires public authorities to promote timely dissemination of accurate information to the
public, train public officers and develop training materials.
C.
Institutional framework
24.
The Ministry of Environment and Forests is the nodal agency in the administrative
structure of the central Government for the protection of the environment and natural
resources of India. Under the Environment (Protection) Act, 1986, the Ministry has been
7
A/HRC/15/22/Add.3
entrusted with the responsibility to set new national standards for the quality of the
environment as well as standards for controlling emission and effluent discharges, to
regulate industrial locations, to prescribe procedures for managing hazardous substances, to
establish safeguards for preventing accidents and to collect and disseminate information
regarding environmental pollution. The Ministry is also responsible for the implementation
of legislation, policies and programmes relating to the conservation of the country’s natural
resources and the prevention, control and abatement of pollution.
25.
Other ministries are responsible for policymaking and/or for the implementation of
legislation and policies in areas of concern to the mandate of the Special Rapporteur. They
include: the Ministry of External Affairs, the Ministry of Health and Family Welfare, the
Ministry of Labour and Employment, the Ministry of Law and Justice, the Ministry of
Chemicals and Fertilizers, the Ministry of Steel, the Ministry of Heavy Industries and
Public Enterprises, the Ministry of Mines and the Ministry of Petroleum and Natural Gas.
26.
The Central Pollution Control Board (CPCB) is an autonomous organization that
has been established to perform the functions laid down in the Water Act, 1974, and has
been entrusted with additional powers and responsibilities by the Air Act, 1981. CPCB
advises the central Government on any matter concerning prevention and control of water
and air pollution and improvement of the quality of air; plans and executes comprehensive
nationwide programmes for the prevention and control of water and air pollution; provides
technical assistance to, and coordinates the activities of, State Pollution Control
Boards/Pollution Control Committees; and organizes trainings and awareness-raising
programmes on the prevention, control or abatement of water and air pollution.
27.
A number of inter-ministerial commissions have been established to facilitate
coordination and cooperation between different ministries and State agencies with
responsibilities in the field of environmental protection, public health and hazardous
wastes/chemicals management. For example, an inter-ministerial committee comprising
representatives of the Ministry of Steel, the Ministry of Labour and Employment, CPCB
and representatives of the shipbreaking industry has been established under the leadership
of the Ministry of Steel to coordinate efforts aimed at improving the working conditions in
the shipbreaking yards.
28.
In a recent paper, the Ministry of Environment and Forests proposed to create an
autonomous national environment protection authority.3 The agency would be established
by law as an independent statutory body with the mandate of monitoring and ensuring
compliance with environmental legislation. It would cover such areas as industrial
monitoring, water, air and soil pollution, and hazardous substance and waste management.
The agency would take over responsibilities for granting environmental clearances, a
regulatory function currently discharged by the Ministry of Environment and Forests, and
carry out some of the monitoring functions currently attributed to CPCB. The latter would
either be absorbed by the new agency or have its institutional structure reviewed to ensure
its effective coordination with the new agency.
3
8
India, “Towards effective environmental governance: proposal for a national environment protection
agency (Ministry of Environment and Forests, September 2009).
A/HRC/15/22/Add.3
III.
Issues in focus
A.
Shipbreaking
29.
Shipbreaking is an important industry for India. It represents an important source
of raw material supply and provides jobs to tens of thousands of people. The practice is
inherently sustainable, given that over 95 per cent of a ship can be recycled: steel is rerolled and used in construction; machinery and equipment are reused; and oils and fuels are
reused or recycled. In principle the recycling of vessels constitutes the best option for ships
that have reached the end of their operating life.
30.
Nevertheless, shipbreaking also represents one of the most hazardous occupations
in the world. During the dismantling process, workers are exposed to a wide range of
hazardous workplace activities, such as entry into confined, enclosed or other dangerous
atmospheres, paint removal, oil/fuel removal and tank cleaning, which may cause death,
permanent or temporary disabilities, and injuries. Furthermore, long-term exposure to toxic
and hazardous substances and materials which may be present on ships sent for
dismantling, such as asbestos, polychlorinated biphenyls (PCBs), heavy metals in paints,
oils and oil sludge, may lead to serious or irreversible work-related illnesses and diseases,
including lung diseases, several forms of cancer and asbestos-related illnesses.4
31.
Thanks to the large intertidal zone areas existing on its coasts, in India ships are
dismantled on beaches, a method commonly referred to as “beaching”.5 This method of
ship dismantling fails to comply with generally accepted norms and standards on
environmental protection. Although very little work has been carried out to assess its
environmental impact, the dismantling of ships on sandy beaches without any containment
other than the hull of the ship itself appears to have caused high levels of contamination of
soil, air, and marine and freshwater resources in many South Asian countries, and to have
adversely affected the livelihood of local communities surrounding the shipbreaking
facilities, which often rely on agriculture and fishing for their subsistence.6
1.
Overview of the shipbreaking industry
32.
Alang/Sosiya is the world’s largest scrapping site for ocean-going vessels. The
yards are located on the Gulf of Khambat, 50 kilometres south-east of Bhavnagar, in the
State of Gujarat. There are currently 173 plots, which have been developed on the 10kilometre-long coast. The plots have a breaking capacity of 350 ships a year, about four
million tons per annum, and produce about 2.5 million tons of re-rollable steel.
33.
The Gujarat Maritime Board (GMB), a semi-public institution running all ports in
Gujarat, is the main regulatory authority of the shipbreaking yards of Alang/Sosiya. As a
nodal agency, GMB provides links between central and local government agencies, such as
the Gujarat Pollution Control Board, the Custom Department, and the Directorate of
Industrial Safety and Health, and the shipbreaking industry. As a landlord, GMB leases out
a shipbreaking plot to the shipbreakers on a 10-year lease basis, and maintains basic
infrastructures.
34.
According to figures provided by GMB, 5,052 vessels have been dismantled in
Alang since 1982, when the first yards were set up. In the last four years alone, more than
4
5
6
See the report of the Special Rapporteur on the adverse effects of the movement and dumping of toxic
and dangerous products and wastes on the enjoyment of human rights (A/HRC/12/26), paras. 19-22.
Ibid, para. 16.
Ibid, paras. 31-36.
9
A/HRC/15/22/Add.3
784 end-of-life ships arrived in Alang – 248 in 2009. Some 60,000 workers are employed
in the yards when the industry works at full force. At the time of the Special Rapporteur’s
visit, the 128 yards which were operational provided employment to about 30,000 workers.
In addition, over 500,000 workers are employed in associated downstream industries, such
as re-rolling mills, foundries, scrap-handling yards, local goods stores and other small
businesses. On the road to Alang, the Special Rapporteur saw a large number of retailers
selling items of every sort recycled from the ships, including engines, boilers, furniture,
electronics, first-aid equipment and kitchenware.
35.
The scale of operations in Mumbai is much smaller than those in Alang/Sosiya.
The 19 plots are located in a waterfront area known as Darukhana, very close to the city.
The land belongs to the Mumbai Port Trust, a public sector undertaking under the control
of the Ministry of Shipping. The plots are rented out on a very short-term basis, about three
to four months. In view of the small scale of shipbreaking activities in Mumbai, the
regulatory authority reportedly plays a relatively less active role than its counterpart in
Alang/Sosiya,7 especially with regard to the enforcement of national legislation on health
and safety at work and environmental protection.
36.
When working at full capacity, the yards provide employment to about 6,000
workers. The total number of workers directly or indirectly employed in the shipbreaking
industry is about 20,000, which include the downstream industries generated by the
shipbreaking yards. During the visit of the Special Rapporteur, it was estimated that some
2,500 workers (1,700, according to the industry) were employed in the 17 plots that were
operational.
37.
Most of the shipbreaking workers at Alang/Sosiya and Mumbai are migrant
workers coming from poorer, less industrialized states of the Union, such as Uttar Pradesh,
Orissa and Bihar. Many workers go back to their villages for three to four months a year,
usually during the monsoon season, to work in agriculture. It is a largely uneducated
workforce, relatively young (19-45 years old) and mostly male. The majority of the
workforce speaks Hindi, followed by Oriya and Bhojpuri. Most of the workers are either
illiterate or have attended primary levels of schooling. A large percentage of workers are
married, but only 20 per cent of them live with their families.8
2.
Legal framework
38.
The Special Rapporteur notes that the laws and regulations on the protection of
human health and the environment from the threats associated with the unsound
management and disposal of hazardous products and wastes, such as the Water Act, 1974,
the Air Act, 1981, and the Hazardous Wastes Rules, 2008, apply to shipbreaking activities.
General labour laws and health and safety legislation, including the Factories Act, 1948,
also apply to this industry.
39.
Various authorities have developed regulations and guidelines on the sound
management and disposal of end-of-life vessels. The environmental guidelines for
shipbreaking industries, adopted in 1997 by CPCB, aim at minimizing the adverse impact
of shipbreaking on the surrounding environment. The guidelines provide for the
development of a comprehensive environment management plan comprising pollution
control measures regarding solid waste, air pollution, water pollution and noise. In 2003,
GMB adopted a set of regulations for the safety and welfare of workers and protection of
the environment during recycling activity in the shipyard. GMB also issued specific
7
8
10
International Metalworkers’ Federation, Status of Shipbreaking Workers in India: A Survey (New
Delhi, 2006), p. 6.
Ibid., pp. 14-18.
A/HRC/15/22/Add.3
regulations concerning the prevention of fire and accidents (2000) and gas free for hot work
conditions (2001).
40.
The Supreme Court has also contributed to developing the rules and procedures
applicable to the shipbreaking industry. In its order of 6 September 2007, the Court
identified the procedures to be followed for anchoring, beaching and dismantling end-oflife ships, as well as the agencies responsible for ensuring compliance with these
regulations. Insofar as possible, the ship should be properly decontaminated by the ship
owner prior to the breaking. Wastes generated during the process should be disposed of in a
proper manner, and special care must be taken in the handling of hazardous substances,
such as asbestos.
41.
The Court also requested that the Government of India formulate a comprehensive
code incorporating these recommendations. Until this code is adopted, the
recommendations are operative by virtue of the Court order, and officials of GMB, the
State Pollution Control Boards, Custom Departments, the National Institute of
Occupational Health and, where relevant, the Atomic Energy Regulatory Board, oversee
these arrangements.
3.
Positive developments
42.
The Special Rapporteur wishes to commend GMB and the yard owners in
Alang/Sosiya for the progress made in recent years in the improvement of health and safety
conditions in the shipbreaking industry. According to information provided by GMB, the
number of fatal accidents dropped from 28 in 1998 to zero in 2008, and work-related
injuries resulting permanent or temporary disabilities have also decreased significantly. He
would also like to express his deep appreciation to national and local trade unions and
NGOs for their tireless efforts aimed at improving the working and living conditions of
those employed in the yards.
43.
The Special Rapporteur is pleased to note that the achievement of this important
result is directly related to the development of appropriate training opportunities for
workers. The Safety Training and Labour Welfare Institute, established in 2003 in Alang,
provides a number of training programmes, seminars and workshop aimed at raising
awareness on the risks associated with ship-dismantling activities and on the measures to
adopt to minimize such risks. From 2003 to 2009, some 49,000 workers participated in
training activities at the Institute.
44.
The “basic safety for all” programme is compulsory for all workers in the yards. It
lasts for three days, and covers such issues as main hazards on ships, fire prevention,
personal protective equipments (PPEs) and first aid. Other regular training programmes
organized by the Institute include the cutter men training, a two-day programme organized
once a week for workers employed as gas cutters, and the basic firemen training, which is
organized for all literate young workers and lasts for two days. Special trainings on such
issues as hazardous waste management, safe removal and handling of asbestos and disaster
management can also be organized at the request of the industry.
45.
The Special Rapporteur also notes with satisfaction that the progressive
introduction and use of basic PPEs, such as helmets, gloves and goggles, have also
contributed to the significant reduction in the number of serious accidents resulting in death
or disabilities. During his visit to Alang/Sosiya, he observed that the vast majority of
workers had been provided with PPEs by their employers, and wore them at all times while
working. The Special Rapporteur was informed that appropriate PPEs for working in
specialized areas, such as respiratory protective equipment for work in conditions where
there is a risk of oxygen deficiency, are also generally available.
11
A/HRC/15/22/Add.3
46.
The Special Rapporteur welcomes the efforts made by GMB and the shipbreaking
industry to improve the health and quality of life of workers and their families in
Alang/Sosiya. Such efforts include the provision of financial support for the setting up of a
local Red Cross hospital and a mobile hospital van to provide first aid and emergency
treatment, the increased availability of safe drinking water in and outside the yards and the
organization of medical camps to provide free medical check-ups and medicines to workers
and their families. The Special Rapporteur has also been informed that a full-fledged 30bed hospital would be operational shortly.
47.
The Special Rapporteur also welcomes the progress made with regard to the sound
management of hazardous substances and the safe disposal of toxic wastes. Before starting
the recycling process, the yard owner should prepare a ship-specific dismantling plan,
which is to include information on, inter alia, the hazardous-waste handling and disposal
plan, based on the type and amount of materials present on board and in the structure of the
ship, the gas-free and fit-for-hot-work certificates, and the identification and marking of all
places containing or likely to contain hazardous substances or toxic wastes. The plan
should also include specific arrangements for the handling and disposal of asbestos and
asbestos-containing materials.
48.
GMB has outsourced the collection, transport, treatment and disposal of hazardous
wastes to Gujarat Environment Protection Infrastructure Ltd. (GEPIL), a private-sector
enterprise authorized by the Gujarat Pollution Control Board. The secured landfill for
hazardous wastes was built in 2005 for the environmentally sound disposal of asbestos,
glass wool wastes and other hazardous wastes generated during ship dismantling (paint
chips, PCB-containing wastes, oily sludge, materials contaminated with oil and chemicals,
among others). GEPIL also manages municipal solid wastes generated from the
shipbreaking yards. From January 2006 to December 2009, GEPIL handled 7,600 tons of
asbestos and glass wool, 4,800 tons of industrial and chemical solid waste and 3,100 tons of
municipal solid waste. The enterprise is planning to build a new landfill for the disposal of
asbestos and other hazardous/non-hazardous wastes, an incinerator, and mobile facilities
for asbestos waste management and oil reception.
49.
Lastly, the Special Rapporteur welcomes the conclusion of a Memorandum of
Understanding between Japan and the government of Gujarat to upgrade the existing
shipbreaking facilities in Alang/Sosiya to international standards. The purpose of the
Memorandum of Understanding is to provide technology transfer and financial assistance
to assist the government of Gujarat in addressing the adverse impact that shipbreaking
activities have on the surrounding environment. It includes the construction and operation
of a common hazardous waste removal pre-treatment facility, modernization of the
recyclable goods market and development of human resources.9
4.
Major concerns
50.
Notwithstanding these positive developments, the health and safety situation
prevailing at the shipbreaking yards continues to remain critical, as witnessed by the 12
fatal accidents that occurred in Alang/Sosiya during the course of 2009, and there are a
number of identifiable shortcomings which need to be addressed. The Special Rapporteur is
particularly concerned about the quality of infrastructure facilities in Mumbai, which
continue to be highly inadequate for guaranteeing health and safety at work and an
adequate standard of living for those employed in the shipbreaking sector.
9
12
“Gujarat, Japan ink MOU to upgrade Alang shipyard”, Gujarat Money, 7 February 2010. Available
from http://gujaratmoney.com/2010/02/07/gujarat-japan-ink-mou-to-upgrade-alang-shipyard/.
A/HRC/15/22/Add.3
51.
The informal nature of shipbreaking activities hampers the effective
implementation of national labour standards aimed at guaranteeing job security and just and
favourable conditions of work. There is no written contract of employment. Workers are
hired either on a monthly basis or for a specific task on a vessel. They regularly change
plots, depending on the arrival of ships and workload. Workers are paid monthly, usually at
the daily rate. The average daily rate is 250 rupees a day (about US$ 5). Working hours are
from 8 a.m. to 5 p.m., but reportedly there is a two-hour compulsory overtime every day
until 7 p.m. in most yards.10 Workers can be fired at any time with no prior notice and with
no reasonable ground.
52.
The right to work is a fundamental right, recognized in several international legal
instruments to which India is a party, including the International Covenant on Economic,
Social and Cultural Rights. Work as specified in article 6 of the Covenant must be “decent
work”, that is, “work that respects the fundamental rights of the human person as well as
the rights of workers in terms of conditions of work safety and remuneration”.11 The
Special Rapporteur considers that the absence of a written contract of employment, and the
possibility of dismissal overnight, are at the core of the vulnerability of shipbreaking
workers, and de facto prevent the full and effective enjoyment of the core labour rights
enshrined in articles 6, 7 and 8 of the Covenant.
53.
Information on the hazards and risks to health and safety relating to the specific
work activities, access to training opportunities, regular exercises in emergency prevention,
preparedness and response procedures, and proper PPEs constitute essential preconditions
for the enjoyment of safe and healthy working conditions, which are a component of the
right to just and favourable conditions of work set out in article 7 of the Covenant.
54.
With a few exceptions, the vast majority of the workforce in Mumbai do not
receive any information on the hazards or risks to health and safety, nor do they receive any
training on how to avoid or minimize them. With regard to safety training, the Special
Rapporteur is of the view that existing training opportunities in Alang/Sosiya should be
improved, considering the magnitude of the risks associated with shipbreaking activities
and the hazardous substances workers are potentially exposed to. In Mumbai, workers do
not receive any formal training from their employers, which makes them more prone to
serious accidents and injuries. As far as PPEs are concerned, the Special Rapporteur regrets
that not all the workers in Mumbai receive helmets, gloves and goggles, and that only a
fraction of them actually use them during work.
55.
Due to the informal nature of working arrangements, workers are not covered by
social protection schemes, and do not receive any benefit in case of work-related injuries or
diseases. The compulsory insurance that the industry is required to have covers only death
and permanent disabilities. In cases of minor accidents, employers usually pay for first aid
and immediate medical expenses, but not for long-term medical treatment or for expenses
linked to chronic work-related illnesses. Workers do not usually receive any wages or
benefits when absent from work on medical grounds.
56.
Much more remains to be done to ensure the effective enjoyment of the right to
the highest attainable standard of health, as defined in article 12 of the Covenant. The
Special Rapporteur observes that this right extends not only to timely and appropriate
health care, but also to “the underlying determinants of health, such as access to safe and
potable water and adequate sanitation, an adequate supply of safe food, nutrition and
10
11
International Metalworkers’ Federation, Status (see footnote 7 above), p. 8.
See Committee on Economic, Social and Cultural Rights, general comment No. 18 (2005) on the right
to work, para. 7.
13
A/HRC/15/22/Add.3
housing, healthy occupational and environmental conditions, and access to health-related
education and information”.12
57.
Health facilities in Alang/Sosiya do not possess sufficient human, technical and
financial resources to provide any treatment other than first aid for minor injuries. The
nearest hospital equipped to deal with life-threatening conditions is in Bhavnagar, more
than 50 kilometres away. The Red Cross hospital in Alang, which the Special Rapporteur
visited, can count on only four medical doctors and nine beds to provide health care not
only to some 30,000 workers in the yards, but also to the neighbouring villages of Alang
(which has a population of about 18,000 people) and Sosiya (4,000 people). In Mumbai the
situation is even worse, with no permanent facilities except first aid and ambulance
services.
58.
The Special Rapporteur notes with concern that most workers, but reportedly also
a number of yard owners, are not aware of the serious life-threatening work-related
diseases which may result from long-term exposure to toxic and hazardous substances and
materials present on end-of-life ships. In particular, it appears that the majority of the
workforce and the local population do not know the adverse consequences of prolonged
exposure to asbestos dusts and fibres and are not familiar with the precautions that need to
be taken to handle asbestos-containing materials.
59.
While the Special Rapporteur acknowledges that the existence of slums constitutes
a much larger problem in the country, he cannot but note with great concern the extremely
poor conditions in which most shipbreaking workers live, especially in Mumbai. The
majority of the workforce lives in overcrowded makeshift facilities just outside the yards.
Most accommodations lack basic amenities such as kitchens, toilet facilities, electricity and
running water.13
60.
The water and sanitation facilities available in Alang/Sosiya remain grossly
inadequate to deal with the consumption, cooking, and personal and domestic hygienic
requirements of the 30,000 workers who work and live there. In Mumbai, the situation is
even worse, with no safe drinking water available in the yards.
61.
The Special Rapporteur is concerned about the availability and the quality of
education available for the children of those employed in the yards. There are no schools in
Alang/Sosiya, so children have to travel long distances to attend school in nearby villages.
The shipbreaking industry has sponsored the construction of four primary schools in the
surrounding region and has set up an informal education facility for the children of workers
in Alang.14 In Mumbai, workers have set up an informal education facility for their children
with the help of local trade unions.
62.
The Special Rapporteur notes that the actual impact of shipbreaking activities on
the surrounding environment continues to be debated (A/HRC/12/26, paras. 31-36). GMB
and the shipbreaking industry claim that ship dismantling has only a limited adverse impact
on the environment. A study commissioned by GMB to a State-owned laboratory found
only “low” to “moderate” levels of hazardous substances in soil and sediment samples.
However, other sources, including a recent report published by the United Nations
Environment Programme (UNEP),15 found high levels of contamination of coastal soil, sea
water and groundwater resources. The Special Rapporteur regrets not having received any
12
13
14
15
14
Committee on Economic, Social and Cultural Rights, general comment No. 14 (2000) on the right to
the highest attainable standard of health, para. 11.
International Metalworkers’ Federation, Status (see footnote 7 above), p. 4.
See www.sriaindia.com/activities.html.
UNEP, Marine Litter: A Global Challenge (2009).
A/HRC/15/22/Add.3
updated scientific data from the regulatory authorities concerned and the State Pollution
Control Boards with regard to the actual impact of shipbreaking activities in Alang/Sosiya
and Mumbai on environmental media.
63.
He also notes with concern that according to information provided by the
International Metalworkers’ Federation, unscrupulous yards owners at times circumvent the
costs associated with the environmentally sound disposal of asbestos and other hazardous
wastes generated during the dismantling process by illegally dumping these toxic wastes in
neighbouring villages.
B.
E-waste
64.
The term “e-waste” is generally used to describe obsolete, broken or discarded
appliances using electricity, such as computers, mobile phones and household appliances.
Electrical and electronic equipment (EEE) are made of a large number of different
substances and materials. Metals (including iron, copper, aluminium and gold) account for
60 per cent of e-waste, while plastics account for 20 per cent. E-waste also contains a
number of hazardous substances, which can be released in the workplace and in the
surrounding environment during the separation and recovery process. Three levels of toxic
emissions can be distinguished, namely:
(a)
Primary emissions: hazardous substances that are contained in e-waste (for
example, lead, mercury, arsenic and PCBs);
(b)
Secondary emissions: hazardous reaction products of e-waste substances as a
result of improper treatment (for example, dioxins or furans formed by
incineration/inappropriate smelting of plastics with halogenated flame retardants);
(c)
Tertiary emissions: hazardous substances or reagents that are used during
recycling (for example, cyanide or other leaching agents, mercury for gold amalgamation)
and that are released because of inappropriate handling and treatment.
65.
The adverse effects that these hazardous substances may have on human health
and the environment have already been considered in previous reports of the Special
Rapporteur.16
1.
E-waste in India: facts and figures
66.
UNEP estimates that 20 to 50 million tons of e-waste are generated worldwide on
an annual basis. This volume is expected to increase at 3 to 5 per cent a year, that is, at a
rate nearly three times faster than the growth in municipal waste streams.17 In comparison
to the European and American markets, the increase in e-waste generation is slower in
India, due to the late technological surge in the country and the tendency to use products for
longer periods. However, in the first quarter of 2010, India’s personal computer sales
touched 2.2 million, a growth of 33 per cent from the same period in 2009,18 and worldwide
mobile phone sales increased by 17 per cent, thanks in part to the growth of emerging
markets, including India.19
16
17
18
19
See for example A/HRC/15/22, paras. 43-44 (lead) and 38-40 (mercury), and A/HRC/12/26, para. 19
(PCBs, polyvinyl chloride and heavy metals).
UNEP, “E-waste: the hidden side of IT equipment’s manufacturing and use”, Environment Alert
Bulletin No. 5 (January 2005), p. 1.
“India’s computer sales up 33 per cent in first quarter”, Economic Times, 23 May 2010.
“Mobile phone sales grows 17 pc in Q1 2010”, Voice of India, 20 May 2010.
15
A/HRC/15/22/Add.3
67.
The ongoing technological modernization of Indian society has increased the
replacement frequency of electronic products, and has in turn led to a dramatic growth in
the generation of e-waste. It has been estimated that 330,000 tons of e-waste are generated
annually in India. By 2012, India is expected to cross the 800,000-ton mark.20 The
generation of e-waste appears to be unevenly distributed, with the west and the south of
India generating 65 per cent of this waste. Mumbai alone generates around 19,000 tons of
e-waste per annum, and a substantial part of it is sent to recycling markets located in other
parts of the country.21 The Government, banking and financial institutions and the industrial
sector account for some 70 per cent of the e-waste produced.
68.
In addition to locally generated e-waste, it appears that an additional 50,000 tons
of end-of-life or obsolete EEE, especially computers, are illegally imported from countries
where more restrictive legislation makes it more expensive to recycle locally.22 Such
countries include the United States of America and European Union members.
69.
At present, it appears that only 3 to 5 per cent of e-waste is recycled in authorized
recycling facilities. The vast majority of EEE is currently collected, dismantled and
processed in the informal sector by some 80,000 workers, including women and children,
who earn their livelihood by breaking down old computers and other high-tech devices to
recover precious metals such as gold, copper and silver. The work is done largely by hand,
using rudimentary techniques. Workers recovering glass by hammering cathode ray tubes
or heating PCBs to remove capacitors are a common sight in most workshops dismantling
e-waste. Workers do not use any protective gear to guard against hazardous substances
released during the breaking of obsolete EEE.
70.
The Delhi area is the main hub for informal recycling of e-waste in India, with
about 25,000 workers engaged in the various stages of the process. The recycling business
is based on a network of collectors, traders and recyclers. Each phase of the process adds
value to the materials and creates job opportunities for a great number of people. The ewaste market is not centred in one main area, but is spread around different zones, each
handling a specific stage of the process (for example storage, component separation, plastic
shredding, acid processing/leaching, open burning and residue dumping).
2.
Legal framework
71.
So far, India has not adopted any specific environmental laws or regulations on ewaste. Existing laws and regulations on waste management do not contain any direct
reference to e-waste nor do they provide any guidance on its sound management and
disposal. However, since e-waste, or its constituents, fall under the category of “hazardous”
and “non-hazardous waste”, they are covered under the purview of existing legislation,
such as the Hazardous Wastes Rules, 2008, and the Municipal Solid Waste Rules, 2000.
72.
In 2008, the Ministry of Environment and Forests issued the “Guidelines for the
Environmentally Sound Management of E-waste”. Although not legally binding, the
Guidelines contain a set of recommendations for all those who handle e-waste, including
generators, collectors, transporters, dismantlers, and recyclers, irrespective of their scale of
operation, to ensure the environmentally sound management of e-waste. The Guidelines
incorporate the notion of extended producer responsibility, an environmental policy
20
21
22
16
Nivi Shrivastava, “E-waste on the rise”, Asian Age.
Toxics Link, Mumbai: Choking on E-waste: A Study on the Status of E-waste in Mumbai (2007),
p. 12.
For example, it has been estimated that recycling a computer in the United States of America costs
about US$ 20 whereas the same operation in India costs US$ 2. See
www.mait.com/admin/press_images/press77-try.htm.
A/HRC/15/22/Add.3
approach in which a producer’s responsibility for a product is extended to the postconsumer stage of a product’s life cycle, and the reduction of hazardous substances
principle, which aims at reducing the use of hazardous substances for which safe substitutes
have been found.
73.
In May 2010, the Ministry finalized the draft e-waste (management and handling)
rules, 2010. The draft rules have been developed in close consultation with civil society and
the industry, and are expected to enter into force before the end of 2010. They apply to any
person or enterprise involved in the manufacture, sale, purchase and processing of EEE or
components. The rules contain detailed provisions on the responsibilities of producers,
dealers, collection centres, dismantlers and recyclers of e-waste, and on the procedure to
obtain authorization from the concerned State Pollution Control Board to handle e-waste.
3.
Positive developments
74.
The Special Rapporteur welcomes the efforts made by Indian authorities to
strengthen the existing legal and institutional framework for the environmentally sound
management, handling and disposal of e-waste. These efforts include the launching of a
nationwide awareness-raising campaign on the e-waste problem in India, especially in the
large cities, and the creation of a National e-Waste Strategy Group under the leadership of
the Ministry of Environment and Forests.
75.
The Special Rapporteur notes with satisfaction the steps taken by the Government
to prohibit the illegal import of e-waste to India, including appropriate training for custom
authorities on the effective implementation of the Hazardous Waste Rules, 2008, and the
establishment of an inter-ministerial coordination committee to coordinate the activities of
the different central and local government agencies with responsibilities in the field of ewaste.
76.
The Special Rapporteur wishes to congratulate the Ministry of Environment and
Forests for elaborating the first legally binding instrument devoted to the environmentally
sound management and disposal of e-waste. He also welcomes the fact that the draft rules
have been made available for public comment on the website of the Ministry.
77.
The Special Rapporteur notes with appreciation that in line with the extended
producer responsibility principle, producers of EEE are made responsible under the new
draft rules to collect the e-waste generated for their end-of-life products and to ensure that
such e-waste is channelled through registered dismantlers or recyclers. He also welcomes
the fact that, in accordance with the reduction of hazardous substances principle, the rules
require producers of EEE to comply, within a period of three years, with the threshold
limits for the use of certain hazardous substances as prescribed in schedule III.
78.
The Special Rapporteur welcomes the efforts made by the Government to
encourage the establishment of e-waste recycling facilities through a Public Private
Partnership model. He welcomes, in particular, the establishment in Roorkee of Attero
Recycling, the first e-waste recycling facility certified by the Ministry of Environment and
Forests to collect, dismantle, segregate, reuse and recycle the various components of
obsolete EEE.
4.
Major concerns
79.
The Special Rapporteur cannot but notice that at present, India does not have any
law or regulation dealing specifically with e-waste, and that the existing legal framework is
not sufficient to ensure that e-waste is managed and disposed of in such a way to ensure the
protection of the human rights of individuals and communities who may be adversely
affected by the unsound management and disposal of the hazardous substances contained in
obsolete EEE.
17
A/HRC/15/22/Add.3
80.
So far, legislation on waste management has not proved effective in prohibiting
the illegal import of e-waste from developed countries. Loopholes in the Hazardous Wastes
Rules, 2008, have facilitated the import of obsolete EEE – computers, in particular – as
second-hand products just before they reach the end of their operating life (10 years).
Illegal import to India of obsolete EEE can also be disguised as a donation or as a sale of
scrap metal. Since the United States of America has not ratified the Basel Convention, the
import of e-waste from the United States is expressly prohibited by article 4, paragraph 5,
of the Convention, according to which a party “shall not permit hazardous wastes or other
wastes (...) to be imported from a non-Party”.
81.
The Special Rapporteur notes with concern that the new draft rules fail to
recognize the reality of e-waste recycling in the country, where at least 95 per cent of ewaste is dismantled and recycled by the informal sector. He considers that the new
legislation does not provide sufficient protection for the estimated 80,000 persons working
in the informal e-waste recycling sector and their families. The failure to incorporate the
informal sector into Government strategies on the sound management and disposal of ewaste constitutes, in the Special Rapporteur’s view, a violation of the obligations
undertaken by the State under articles 6, 7 and 11 of the International Covenant on
Economic, Social and Cultural Rights.
82.
The Special Rapporteur is concerned about the extremely dangerous recovery
processes and techniques used in the informal e-waste recycling sector and their adverse
effects on the right to health of those employed in small-scale informal workshops. Such
health-threatening practices include the physical breaking of hazardous components, openair incineration and acid leaching to extract gold and copper, and the melting of lead. Most
of these activities involve physical dismantling by bare hands and basic tools. Workers do
not use any protective gear to prevent exposure to the hazardous substances contained in
EEE; indeed, most of them possess very little or no knowledge of the risks associated with
the handling of these hazardous substances or the precautions to use to minimize their
adverse health effects.
83.
The Special Rapporteur is also concerned by the long-lasting and widespread
contamination caused by the unsound disposal of e-waste into the environment. Unusable
parts of obsolete EEE are usually disposed of in landfills or burned. E-waste disposed in
landfills can leach heavy metals and other toxins into the soil and contaminate groundwater
resources used for drinking or domestic purposes by local populations. Open-air burning of
e-waste can release dioxins and furans – two persistent organic pollutants resulting from the
burning of flame retardants found in plastics – into the air. Local communities living close
to the areas where e-waste is dismantled and recycled do not appear to be aware of these
risks.
IV.
A.
Conclusions and recommendations
International obligations
84.
The Special Rapporteur recommends that the Government take all
appropriate measures to give full effect to international human rights treaties to
which India is a party, and notably the International Covenant on Economic, Social
and Cultural Rights and the International Covenant on Civil and Political Rights, in
domestic law.
85.
The Special Rapporteur notes that India is not a party to several
International Labour Organization conventions on health and safety at work, and
calls on the Government to consider ratifying these conventions, in particular the
18
A/HRC/15/22/Add.3
Convention concerning Occupational Safety and Health and the Working
Environment, 1981 (No. 155) and the Convention concerning Safety in the Use of
Chemicals at Work, 1990 (No. 170).
B.
Constitutional and legal framework
86.
The Special Rapporteur notes with appreciation that India has developed a
comprehensive constitutional and legal framework for the promotion and protection
of human rights. India is one of the few countries in the world that has included
specific provisions on the protection and promotion of a safe and healthy environment
in its Constitution.
87.
The Special Rapporteur welcomes in particular the significant role played by
national courts in strengthening the justiciability of economic, social and cultural
rights laid down in part IV of the Constitution. He also notes with satisfaction that the
Supreme Court has on a number of occasions recognized the right to a safe and
healthy environment as being implicit in the fundamental right to life.
88.
India has developed a comprehensive legal framework to ensure the sound
management and disposal of hazardous products and wastes. However, the Special
Rapporteur notes with concern that this legislation is not effectively implemented. He
is also concerned about the insufficient enforcement of existing labour legislation at
the federal and the state levels, as well as the lack of awareness among employers on
the existing rules and standards.
C.
Institutional framework
89.
The Special Rapporteur is of the view that the current institutional
framework is inadequate for responding to the emerging health and environmental
challenges posed by the generation, management, handling, transport and disposal of
toxic and dangerous products and wastes. He shares the view expressed by the
Supreme Court Monitoring Committee on Management of Hazardous Wastes that
institutional failure at different levels has to be regarded as the main cause for weak
application of existing laws for pollution control and environmental protection.23
90.
The Special Rapporteur recommends that the role and functions of the
central and state government institutions responsible for the implementation and
enforcement of national legislation on hazardous substances and toxic waste
management be better defined, and that appropriate mechanisms be developed to
ensure better coordination and cooperation among these institutions.
Enforcement and monitoring
91.
The Special Rapporteur recommends that the Government take all
appropriate measures to provide adequate human, technical and financial resources
to the Central Pollution Control Board (CPCB) and the State Pollution Control
Boards, in order to improve their capacity to effectively enforce, and monitor
compliance with, the existing legal framework on hazardous substances and waste
management. He also recommends that the Government consider establishing a new
23
Report of the Supreme Court Monitoring Committee on Management of Hazardous Wastes, vol. I
(November 2006), p. 58.
19
A/HRC/15/22/Add.3
national environment protection authority to carry out some of the functions
currently discharged by the Ministry of Environment and Forests and CPCB.
92.
The Special Rapporteur further recommends that India adopt all appropriate
measures to curb illegal import of hazardous waste. Such measures should include the
allocation of adequate human and financial resources to customs authorities, the
provision of adequate training opportunities for customs officials and the upgrade of
laboratory facilities in the major ports of the country. The country should also
strengthen its capacity to prosecute and punish environmental crimes by, inter alia,
organizing appropriate training opportunities for judges and prosecutors.
D.
Shipbreaking
93.
The Special Rapporteur finds that national legislation on health and safety in
the workplace and environmental protection has not been properly implemented by
the shipbreaking industry or enforced by the Gujarat Maritime Board (GMB), the
Mumbai Port Trust (MPT) and the State Pollution Control Boards. He also notes that
the Supreme Court order of 6 September 2007 has not been fully complied with by the
responsible agencies. He urges the yard owners to comply with their obligations under
national legislation, and encourages central and local government authorities,
including GMB, MPT, the State Pollution Control Boards and the National Institute
of Occupational Health, to enforce relevant legislation and apply the sanctions
provided for by the law in case of non-compliance.
94.
The Special Rapporteur wishes to stress that the informal nature or the
seasonal character of shipbreaking activities, which depend on the demand for
recycled steel and on the cost of recycling operations, cannot – and must not – be
invoked as a reason to justify the non-implementation of national labour standards.
All workers, including semi-skilled and unskilled workers, should be provided with a
written contract of employment, which constitutes an essential precondition for
ensuring job security and the effective exercise of core labour rights. Such a contract
should indicate, at the very least, the job duties, the duration of employment,
compensation and benefits, and should be terminated only in the circumstances
provided for by the law.
95.
Regulatory authorities in Alang/Sosiya and the shipbreaking industry should
step up their efforts to improve health and safety in the yards. Such measures should
include the provision of appropriate personal protective equipments (PPEs) for those
who work in specialized areas, the creation of additional training opportunities and
safety workshops, and regular exercises in emergency prevention, preparedness and
response procedures. With regard to Mumbai, the Special Rapporteur urges MPT
and the shipbreaking industry to adopt all appropriate measures, without further
delay, to ensure that all workers in the yards receive and use appropriate PPEs and
have access to formal training opportunities.
96.
Regulatory authorities and the industry should also organize training
opportunities and awareness-raising initiatives to provide workers and the local
population with adequate information on the health risks arising from long-term
exposure to hazardous substances and materials present on end-of-life ships.
97.
The Special Rapporteur recommends that the Government take steps, to the
maximum of its available resources, to remove the obstacles that currently prevent
those working in the informal economy to have access to social security on an equal
basis with other workers. Regulatory authorities in Alang/Sosiya and Mumbai should,
in consultation with the shipbreaking industry and workers’ associations, consider
20
A/HRC/15/22/Add.3
developing informal social security schemes to ensure a minimum level of coverage of
risks and contingencies for all workers in the yards.
98.
The Special Rapporteur urges regulatory authorities in Alang/Sosiya and the
industry to allocate additional human, technical and financial resources to existing
health facilities in Alang/Sosiya. Since no facilities of a permanent nature, except firstaid and ambulance services, exist in Mumbai, the Special Rapporteur urges MPT and
the shipbreaking industry to establish such facilities with no further delay.
99.
The Special Rapporteur is seriously concerned at the poor conditions in
which most workers live, especially in Mumbai. He calls on GMB and MPT to provide
appropriate plots of lands, and to facilitate – with the financial help of the
shipbreaking industry – the construction of adequate housing facilities for those who
work in the yards. Adequate access to safe drinking water and sanitation facilities
should also be provided within and outside the yards. Taking into account that about
20 per cent of workers are accompanied by their families, the Special Rapporteur also
calls on the Government of India and regulatory authorities to establish and maintain
schools or formal education facilities for the children of those employed in the yards.
100.
Finally, the Special Rapporteur recommends that an independent study be
carried out to assess the actual and potential adverse effects caused by the discharge
of hazardous substances and materials into the natural environment. Such a study
should also assess the steps that need to be taken for the gradual phasing out of
“beaching” in favour of more environmentally friendly methods of shipbreaking.
E.
E-waste
101.
The Special Rapporteur calls on the Ministry of Environment and Forests to
finalize, as a matter of priority and in close consultation with civil society
organizations and the e-waste informal recycling sector, the adoption of the e-waste
(management and handling) rules, 2010.
102.
The Special Rapporteur also recommends that India develop a national
implementation plan to ensure the sound management and disposal of e-waste. Such a
plan should identify appropriate incentives to ensure that obsolete electrical and
electronic equipment (EEE) be dismantled and recycled only in authorized recycling
facilities, and facilitate the integration of the informal sector – which at present
recycles at least 95 per cent of e-waste generated or imported into the country – in the
new Government policies on the sound management and disposal of e-waste.
103.
The Special Rapporteur urges Indian authorities to adopt all appropriate
measures to improve health and safety working conditions in small-scale informal
workshops. Such measures should include the organization of safety trainings for
workers and awareness-raising campaigns on the risks associated with the improper
handling and disposal of hazardous substances contained in obsolete EEE, as well as
on the precautions to adopt in order to minimize any adverse effects on health and the
environment.
104.
Lastly, the Special Rapporteur considers that the new draft rules might be
ineffective in controlling illegal trade, since they prohibit only the import of EEE in
India for charity. He recommends that the current draft be reviewed to include
specific provisions to prohibit the import of obsolete EEE – in particular computers –
as scrap metal or second-hand products.
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